Last year, Betsy Devos’s Department of Education rescinded Obama-era guidelines regarding the rights of transgender students. Those guidelines interpreted Title IX, which bans discrimination “on the basis of sex,” as protecting trans students’ rights to use the bathroom that corresponds to their gender identity.
At the time, Devos equivocated a bit about what this action meant. The guidelines were rescinded, she said because they represented a “top-down approach” that epitomized “the Obama administration’s overreach.” Trans students’ rights, she claimed, were “best dealt with and solved at a personal level, a local level.”
So did this mean her Department wouldn’t defend those students who did complain that their unfettered and equal access to an education was being impeded because they can’t safely use the bathroom? Did this mean that students who believed the “local level” was being unjust to them by forcing them to use the wrong bathroom could still count on the Department’s protection?
BuzzFeed News reports that they’ve repeatedly called and emailed the Education Department, in an attempt to clarify the Department’s position on the rights of transgender students. According to BuzzFeed, spokesperson Liz Hill eventually responded by confirming that the Department believes “separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”
“Where students, including transgender students, are penalized or harassed for failing to conform to sex-based stereotypes, that is sex discrimination prohibited by Title IX,” said Hill. “In the case of bathrooms, however, long-standing regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX.”
“Title IX prohibits discrimination on the basis of sex, not gender identity,” Hill said.
As always when Devos rescinds a guideline like this—something she has also done for victims of sexual assault and students with disabilities—she has not actually changed anyone’s rights under the law. As the Department of Education’s own website says, “Guidance documents represent the Department of Education’s (ED) current thinking on a topic. They do not create or confer any rights for or on any person and do not impose any requirements beyond those required under applicable law and regulations.” In short, these guidelines are interpretations of existing law; they are not laws unto themselves.
However, these guidelines help to set the standard for often difficult-to-interpret federal laws and regulations, and they also help to determine which cases the Department of Education will help with. And with this latest statement, the Department of Education has made it clear that they will not be doing their part to ensure trans students can receive their education with dignity.
They should all be ashamed.
(via BuzzFeed News; image: Shutterstock)
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